Writing, Clear and Simple

Will Schwalbe asks if confidentiality disclaimers on e-mail messages are as stupid as they look. You know the ones: The dense bits of legalese at the end of an e-mail message that say, in essence, that if you aren’t the intended recipient of this message, you’re not allowed to read it, save it, or forward it on to anyone else. I’ve collected a few representative examples:

Confidentiality Notice: This e-mail message including attachments, if any, is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. If you are the intended recipient, but do not wish to receive communications through this medium, please so advise the sender immediately.

I always say, if I’m not the intended recipient, then why the hell did you send it to me, and why are you putting the onus on me to do the right thing when you’re the one who screwed up?

I particularly wonder about that phrase, “Any unauthorized review, use, disclosure or distribution is prohibited.” Prohibited by whom, or by what statute? Is that phrase enforceable? Or is that like the software licenses that say “by installing this software, you agree to be bound by the terms of this license”?

And how is this supposed to work when the message is sent to an e-mail list (like a LISTSERV list, or a Yahoo or Google group), especially those that archive messages on a public website? (That’s where I got the examples in this post, from lists I belong to.) 

Here’s one that struck me as a masterpiece of legal gobbledygook:

Disclaimer and Confidentiality Note: Everything in this e-mail and any attachments relating to the business and/or activities of [full company name] and/or its subsidiaries (hereinafter collectively referred to as `[company]´) is proprietary to [company]. The information in this e-mail is confidential and is legally privileged. [Company] does not own and/or endorse any other content. Views and opinions are those of the sender unless clearly stated as being that of [company]. This e-mail is intended solely for the addressee. Access to this e-mail by anyone else is unauthorised. If you are not the intended recipient, any disclosure, copying, distribution or any action taken or omitted in reliance on it, is prohibited and may be unlawful. Please notify the sender immediately if it has unintentionally reached you. Whilst all reasonable steps are taken to ensure the accuracy and integrity of the information and data transmitted electronically and to preserve the confidentiality thereof, no liability or responsibility whatsoever is accepted if the information of data is, for whatever reason, corrupted or does not reach its intended destination. 

 I like that bit of weasel-wording: “any disclosure, copying, distribution or any action taken or omitted in reliance on it, is prohibited and may be unlawful.” [Emphasis added.] “May be unlawful,” but maybe not, eh? And maybe this is just a bunch of smoke-blowing.

(On a tangent: I wonder what the bandwidth cost of these things is? That last one is a real corker, weighing in at 175 words, or 1,140 characters with spaces. What percentage of e-mail traffic is taken up by this legalese?)

Over on Will’s blog, I said I thought these were the result of overlawyering, but I’ll see if I can get the legal writing gurus—Wayne Scheiss,  Ray Ward, and Mister Thorne—to venture an opinion on the actual legal value of such disclaimers, or if they know whether they’ve ever been challenged in court.

Here’s a question that came up on a technical writing list I subscribe to: If you have a copyright statement in a document that you distribute regularly, do you update the copyright date for the new year?

If the document is unchanged, then no. For example, if you publish a recipe for eggnog in December of 2006, the copyright statement should say “Copyright © 2006 Alphonse Q. Murgatroyd.” According to the American Bar Association’s guide to copyright, your copyright begins “from the time the work is created in fixed form.” You might distribute that recipe for many years, but as long as you don’t make any changes to it, you don’t change the copyright.

However, assume that in 2007 you add some information about how to avoid salmonella poisoning (in an effort to avoid lawsuits) and republish your recipe, then you would update the copyright date.

If you have a website (like a blog) that you claim copyright for, and the information on that website is updated regularly, then as soon as a change is made on that website, you should update the copyright statement for the new year. 

Disclaimer: I am not a lawyer. I’m basing this on an interested layman’s understanding of U.S. copyright law.

In my article about delivering bad-news messages, I said you should “Tell the truth—as much of it, and as early, clearly, and directly as you can.” I gave that advice because it’s just the right thing to do, and also because I knew that, sooner or later, audiences usually see through attempts to obfuscate. Rosalie Maggio, author of How to Say It, put it like this:

 “Listeners and readers have a good sense of when they’re hearing a load of horse pucky.”

But there are more reasons than “It’s the right thing to do,” and “People recognize bull when the see it.” Try this one: You could land yourself and your company in a costly lawsuit.

(AP) Newly unsealed court documents show Guidant Corp. drafted a letter warning doctors of a dangerous electrical malfunction in some of its devices designed to restore a normal heartbeat, but the letter was never sent. Instead, the company issued a more routine and less-targeted “product update” after learning of a short-circuiting problem that had occurred in some units of two defibrillator models—a flaw that could prevent a device from delivering a potentially lifesaving shock to the heart.

Got that? Rather than a straightforward, honest letter about some seriously bad news, they apparently tried to cover things up. And now they’re wrapped up in a government investigation and more than 100 class action lawsuits. I suppose one could say they were trying to keep people from jumping to conclusions and making hasty decisions to remove the devices, and an internal memo shows that’s what they were concerned about. But a company spokesman has also said that Guidant officials “understand and acknowledge the need for more timely and transparent communications.”

Well, since the company (now owned by Boston Scientific Corp.) is facing legal costs of up to $2 billion, you can bet they’re mourning the lost opportunity to tell the truth. 

If you write anything (and I do mean anything) but have never given copyright much thought, do yourself and everyone else a big favor and read Brad Templeton’s articles, A brief intro to copyright, and 10 Big Myths about copyright explained.

"Oh, but I’m just a little blogger," or "But I just write reports/proposals/e-mails at work. I don’t need to worry about copyright stuff. That’s just for publishers, isn’t it?" Believe me, you DO need to worry about copyright laws.